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Making War Robert J Cornell Law Review Volume 93 Article 11 Issue 1 November 2007 Making War Robert J. Delahunty John Yoo Follow this and additional works at: http://scholarship.law.cornell.edu/clr Part of the Law Commons Recommended Citation Robert J. Delahunty and John Yoo, Making War, 93 Cornell L. Rev. 123 (2007) Available at: http://scholarship.law.cornell.edu/clr/vol93/iss1/11 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. RESPONSE MAKING WAR RobertJ Delahuntyt &John Yoott Presidents have long initiated military conflict without specific congressional authorization. For large wars this practice extends at least as far back as the Korean War if not further, and for smaller conflicts the practice can be traced to the very first administrations.1 During the Vietnam War, academic critics turned to the original in- tent of the Constitution's Framers to argue that this form of war mak- ing was illegal. 2 This view became the governing consensus through the 1970s and 1980s and reached its culmination in books by John Hart Ely, Louis Fisher, Michael Glennon, and Harold Koh, among others.3 Simply put, these authors conclude that Congress's power to "declare war" gives it the full and plenary authority to decide whether 4 to initiate military hostilities abroad, except in cases of self-defense. Originalists have quarreled about war powers ever since. We have argued that the original understanding does not prove that the mod- ern practice is illegal.5 If anything, the best reading of the text finds significant support for presidential initiative in war. Unleashing the Dogs of War represents the latest step in the originalist discourse. 6 Pro- t Associate Professor of Law, University of St. Thomas School of Law, Minneapolis, MN. tt Professor of Law, University of California at Berkeley School of Law (Boalt Hall); Visiting Scholar, American Enterprise Institute. We would like to thank Sean Callagy for his research assistance. I SeeJohn C. Yoo, The Continuationof Politics by Other Means: The Original Understand- ing of War Powers, 84 CAL. L. REV. 167, 177-82 (1996). 2 See id. at 188-94. 3 See, e.g., JOHN HART ELY, WAR AND RESPONSIBILITY. CONSTITUTIONAL LESSONS OF VI- ETNAM AND ITS AFTERMATH 3-5 (1993); Louis FISHER, PRESIDENTIAL WAR POWER 185-206 (2d ed., rev. 2004); MICIIAELJ. GLENNON, CONSTITUTIONAL DIPLOMACY 80-84 (1990); Louis HENKIN, CONSTITUTIONALISM, DEMOCRACY, AND FOREIGN AFFAIRS 109 (1990); HAROLD HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION: SHARING POWER AFTER THE IRAN- CONTRA AFFAIR 158-61 (1990); CHARLES A. LOFGREN, "GOVERNMENT FROM REFLECTION AND CHOICE": CONSTITUTIONAL ESSAYS ON WAR, FOREIGN RELATIONS, AND FEDERALISM 3-38 (1986). 4 See, e.g., ELY, supra note 3, at 3. 5 See, e.g., Robert J. Delahunty & John Yoo, The President's Constitutional Authority to Conduct Military Operations Against Terrorist Organizations and the Nations that Harbor or Sup- port Them, 25 HARV. J.L. & PUB. POL'Y 487 (2002). 6 Saikrishna Prakash, Unleashing the Dogs of War: What the Constitution Means by "Declare War," 93 CORNELL L. REV. 45 (2007). CORNELL LAW REVIEW [Vol. 93:123 fessor Prakash maintains that we can infer the Constitution's alloca- tion of war powers through a broad survey of the eighteenth-century use of the phrase "declare war." This approach, he claims, yields more support for the conventional wisdom than originalists have com- monly thought. Prakash has made an important contribution by bringing more historical sources to bear on the question of the origi- nal understanding of war powers. In this Response, we will carry the dialogue further. First, we will argue that Prakash's interpretive approach imposes an unexplained burden of proof that places little to no importance on the starting point of constitutional interpretation: the text. The best reading of the text rejects Prakash's claim about Congress's power to declare war. We supplement our textualist reading by exploring constitutional structure, which should not tolerate the redundancies created by Prakash's approach. The key point here is that the constitutional structure already gives Congress more than enough constitutional au- thority through the creation and funding of the military, a power that was all the greater in the eighteenth century when the United States had no standing Army or Navy. Second, we address Prakash's use of the historical sources and argue, in short, that he has thrown his net too wide. Accumulating statements where some diplomats and gov- ernment officials used the phrase "declare war" in a broad sense ig- nores the use of the phrase in a constitutional setting. Examination of the important antecedents to the Constitution, developments in eight- eenth-century American constitutional thought, and the broader in- tellectual understanding of war and international law during the ratification period shows that "declare war" does not bear the mean- ing that Prakash claims. We close with a more complex account of early war making under the Washington and Jefferson administra- tions, an account that yields lessons which are different from those that Prakash has elicited. Unleashing the Dogs of War's strength is its sheer effort, combing a broad range of sources on the eighteenth-century use of "declare war." But it could benefit from a more sophisticated approach to ana- lyzing historical data. Prakash essentially attempts to assemble every mention of the phrase "declare war" to show that it was universally understood to mean "begin" hostilities. But he cannot deny that im- portant historical figures of the period both used "declare war" in its narrower sense under international law and used other phrases, such as "make," "engage," or "levy," to refer to beginning military conflict. In the face of conflicting historical material, the right way to recon- struct the original understanding is to place the evidence in the right context. Such contexts include the constitutional development dur- ing the Critical Period in favor of a stronger executive, the declining 2007] 0MAKING WAR significance of declaring war in international legal thought, and the nature of warfare during the late eighteenth century. Arriving at the best reading of the original understanding is not just a matter of pil- ing more chits on one side of a scale but of also bringing the right historical analysis to the material. We think that when analysis is ap- plied to evidence, the historical data weigh against the modern ap- proach to war powers. I BURDEN OF PROOF/TEXTUALISM Prakash's argument depends on an unstated burden of proof. He argues that it is "impossible" to arrive at a textual interpretation of the Constitution's power to declare war and that, because of this tex- tual ambiguity, historical evidence must determine the Constitution's allocation of war powers. In other words, Prakash believes that the constitutional text does not count for all that much; the operation of war powers must be deduced from the original understanding of the Constitution held at the time of its ratification. For Prakash, uncertainty in the text is so pervasive that it is per- missible to read constitutional provisions to be redundant, inconsis- tent, or superfluous. His reading, for example, makes superfluous Article I, Section 8's vesting in Congress of the power to "grant Letters of Marque and Reprisal."'7 If the Declare War Clause already gives Congress the complete power to decide whether to start military hos- tilities of all kinds, there is little point in also giving it the lesser power of authorizing a limited naval war. That would clearly be part of Prakash's broad reading of the Declare War Clause. The same goes for the companion clause giving Congress the authority to "make Rules concerning Captures on Land and Water."8 If the Declare War Clause already means that Congress can define the nature of any war, including its goals, limits, and methods, it is redundant to give the Legislature the power to set rules of capture. Prakash can point to no other place where the Constitution grants both a broad power fol- lowed by several lesser included (but unnecessary) versions of the same power in the same sentence. One should resist any reading of the Constitution that renders any of its provisions meaningless. Prakash's approach to the text also causes problems by giving dif- ferent words in the Constitution the same meaning. Under his ap- proach, the power to declare war encompasses all forms of starting war. Article I, Section 10 prohibits the states from having the ability to "engage in war, unless actually invaded, or in such imminent Danger 7 U.S. CONST. art. I, § 8. 8 Id. *CORNELL LAW REVIEW [Vol. 93:123 as will not admit of delay" without the consent of Congress.9 If "de- clare war" has the meaning that Prakash attributes to it, the Framers should not have used "engage." Article III defines "treason" as "levy- ing war."' 10 If "declar[ing] war" encompasses all forms of beginning war, the Framers should likewise have made treason the crime of "de- claring war" against the United States. Prakash admits that "declare" and "levy" overlap but claims that using "levy" twice would have less- ened the power given to Congress. It is difficult to see why-if the Framers sought to give Congress the broadest possible power over war, "levy" would have been, like "engage," the more appropriate choice. These arguments assume that the Framers were "crystal clear" in their use of language, for otherwise they do not negate Prakash's alter- native reading.
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